The government has decided to scrap the draft Mental Health Bill and instead amend existing legislation, following widespread opposition. New “shorter and less costly” proposals were published last week by health minister Rosie Winterton. But campaigners claim they are replicating some of the worst features of the bill.
Many are deeply disappointed that the government has retained the most contentious proposal of the draft bill. This is removing the requirement for compulsory powers to have a therapeutic benefit. While the government’s new proposals do not give detail on what this would be replaced with, the draft bill said compulsory powers could be used when “appropriate treatment” is available.
The government has long argued that new powers are needed to section people with difficult to treat personality disorders. Campaigners argue that removing the “treatability test” would lead to a rise in the number of people being detained, and say that detention should only be used if it has a therapeutic benefit.
The government has dropped a proposal in the bill to create a right to independent mental health advocacy. Charity Action for Advocacy says the move “makes a mockery” of the government’s pledge to put patients at the heart of the NHS.
There is no mention of race equality in the government’s latest proposals. The Social Perspectives Network, a campaign group, says: “The scant provision for race equality is particularly important given the alarming over-representation of black and minority ethnic mental health service users at the coercive and secure ends of the mental health system.”
Matilda MacAttram, senior health consultant for charity The 1990 Trust, said: “It is important that we monitor the government’s next steps as the battle is by no means over. The bill as it was proposed would dramatically increase current disadvantages for black people. We are pleased the government has abandoned the bill, but the challenge now is to make sure the measures that do come forward are non-discriminatory.”
Campaigners have welcomed the government’s renewed commitment to allow patients to choose their nearest relative – the person nominated to speak up for the patient – including civil partners.
Supervised treatment in the community
The government plans to introduce supervised treatment in the community for suitable patients, following an initial period of detention and treatment in hospital to help ensure compliance.
Andy Bell, spokesman for the Mental Health Alliance, a charity coalition that campaigned on the bill, says:” It’s been a wish of the government to introduce provision of compulsory treatment outside of hospital, and in the draft bill a new non-resident order was proposed. Now the detail is unclear but supervised treatment appears to be a compromise between supervised discharge and non-resident orders.”
Bell adds: “This needs to be done with very tight safeguards, with clear guidelines on how long someone would have to be in hospital to get supervised treatment, and whether there will be a time limit on the supervised treatment period.”
Mental health professionals
The government has carried over the draft bill’s proposal to “expand on the skill base” of professionals responsible for the treatment of patients without their consent.
Campaigners say this will need analysis to see whether it is achievable and predict the government may follow the idea of creating a clinical supervisor, someone other than the psychiatrist, for treating patients.
This could include replacing approved social workers with other mental health professionals
Mental health review tribunals
The government has scrapped a proposal in the draft bill to put a maximum waiting time of 28 days for mental health tribunals.
Cliff Prior, chief executive of mental health charity Rethink criticised the move, claiming it “undermines civil rights and creates a class of people whose illness put them outside legal protection that the rest of society would expect as the norm.”
Definition of mental disorder
The government has retained its pledge to introduce a new, “simplified” single definition of mental disorder.
It will also continue the existing exclusion of people with drug and alcohol dependency and preserve the effect of the Mental Health Act 1983 as it relates to people with learning difficulties.
The government has pledged to address safeguards for children treated on the basis of parental consent under the Children Act 1989, but says children detained under the Mental Health Act will continue to receive the same safeguards as adults.
It wants to consider ways to pursue other patient safeguards, such as advocacy, “through other means.”
Kathryn Pugh, project leader at children’s mental health charity Young Minds, argues that children detained under the Mental Health Act are not receiving the kind of care they need.
“The government must look at why children treated under the Children Act get better care. They have a right to assessment and the right to care that they need, but children detained under the Mental Health Act have no similar rights, such as the right to be placed in an age-appropriate adolescent unit. This is in breach of the UN convention on the rights of the child.”
The Bournewood gap
The government has announced that the Mental Capacity Act 2005 will be amended to introduce safeguards for people who lack capacity and are deprived of their liberty but are not protected under mental health legislation.
This follows the European Court of Human Rights ruling in October 2004 that a severely autistic man was deprived of his liberty when he was detained at Bournewood hospital for three months in 1997.
Richard Kramer, head of policy at charity Turning Point and spokesman for the Making Decisions Alliance, a charity coalition, says the move ends the government’s “indecision” over whether the Bournewood gap should come under mental health or mental capacity legislation.